Opinion
Crim. No. 99-84 M.
March 29, 1999
MAGISTRATE JUDGES PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Proposed Findings
1. This matter comes before the Court upon the Defendant-Petitioners (De La Riva) Amended Motion to Compel Release and Petition for Writ of Habeas Corpus, filed March 22, 1999; and the Governments Motion to Strike, filed March 25, 1999. De La Riva moves this Court pursuant to 28 U.S.C. § 2241 and Fed.R.Crim.P. 46 and 47 for an order directing the Department of Justice and the Immigration and Naturalization Service (INS) to immediately release him from custody pursuant to this Courts order setting conditions of release. As grounds for his Motion to Compel Release, De La Riva asserts that 8 U.S.C. § 1226(c) does not authorize the INS detention of De La Riva while his criminal case is pending and he is released on conditions. De La Riva argues that the (1) plain language of § 1226(c) demonstrates that it is inapplicable to De La Rivas situation; (2) the INS interpretation of § 1226(c) conflicts with the Bail Reform Act, 18 U.S.C. § 3142(d); and (3) § 1226(c) is unconstitutional on its face by violating De La Rivas right to due process.
2. The Plaintiff-Respondent (USA) responds to De La Rivas Motion to Compel Release by arguing first that this Court lacks jurisdiction over the matter because De La Riva was being detained by INS at its Immigration Detention Center in El Paso, Texas, which is located in another federal judicial district. The USA also argues that De La Riva has failed to exhaust his administrative remedies with the INS before filing his Motion to Compel Release. Finally, the USA contends this Court lacks jurisdiction to review the INS detention of De La Riva under 8 U.S.C. § 1226(e), and § 1231(a)(2), (4) and (5). In its Motion to Strike, the USA also argues that De La Riva should have filed a separate civil action to raise his habeas corpus issues. I will address the USAs jurisdictional and procedural issues first. Then, if necessary, I will address the merits of De La Rivas Motion to Compel Release.
A. Personal Jurisdiction over De La Riva
3. 28 U.S.C. § 2243 provides that the writ of habeas corpus "shall be directed to the person having custody of the person detained." The writ of habeas corpus acts upon the lawful custodian of the petitioner, not upon the petitioner. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973). Consequently, § 2241 requires that the court have jurisdiction over the custodian. Id. at 495. In this case, De La Rivas INS custodian was Luis Garcia, the district director for the INS. Mr. Garcias district apparently covers southern New Mexico as well as the El Paso, Texas area. This Court, therefore, necessarily had personal jurisdiction over Mr. Garcia. The Court notes, however, that since De La Riva filed his Motion to Compel Release, he has been turned over to the United States Marshall for detention pending resolution of De La Rivas motion. Because De La Riva is back in the District of New Mexico and is no longer being detained by the INS, I find that the issue of jurisdiction is now moot. Clearly, this Court has jurisdiction over De La Riva and his custodian regardless of whether De La Rivas Motion to Compel Release is characterized as a habeas corpus action or not.
B. Exhaustion of Administrative Remedies
4. Generally, parties must exhaust administrative remedies prior to seeking relief in federal court. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). However, exhaustion may be excused if the interest of the individual in retaining prompt access to a federal judicial forum [out weighs the] countervailing institutional interests favoring exhaustion. Id. at 146. Where a petitioner challenges an INS pre-deportation detention action, several courts have held that exhaustion is not required by the Immigration and Naturalization Act. See Kamara v. Farquharson, 2 F. Supp.2d 81, 88 n. 8 (D.Mass. 1998) (listing cases). Because all that De La Riva is contesting at this time is his pre-deportation detention, not the merits of a deportation, I find that his interest in prompt judicial access outweighs the INS apparent lack of interest in requiring exhaustion in pre-deportation detention cases. Therefore, De La Riva need not exhaust his administrative remedies with the INS.
C. Habeas Corpus Jurisdiction over INS Decisions
5. The USA concedes that some courts have concluded that federal district courts retain jurisdiction under 28 U.S.C. § 2241 to address substantial constitutional claims surrounding the Attorney Generals actions. . . . Response in Opposition to Defendants Motion to Compel Release and Petition for Writ of Habeas Corpus at 5 (filed March 18, 1999). Judge Black recently found that the majority of circuits have indeed held that federal courts retain jurisdiction under § 2241 to review substantial constitutional claims relating to INS orders. Mariscal v. Reno, Civ. No. 98-992 BB/WWD, Memorandum Opinion and Order, filed Nov. 19, 1998. See also Martinez v. Greene, 28 F. Supp.2d 1275, 1278-79 (D.Colo. 1998). I agree with Judge Black and the court in Martinez. Therefore, I find that if the Motion to Compel Release is characterized as a habeas corpus petition this Court would have § 2241 jurisdiction to hear this case.
D. The Merits of De La Rivas Motion to Compel Release (1) Inapplicability of 8 U.S.C. § 1226(c)
6. Section 1226(c) states that the Attorney General shall take into custody any alien who is deportable by reason of having committed one of several enumerated felony crimes when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. De La Riva argues that this section does not apply when the alien is released on conditions. Rather, De La Riva contends that § 1226(c) applies only to aliens who are released from jail on the underlying offense. Pastor-Camarena v. Smith , 977 F. Supp. 1415, 1417 (W. D. Wash. 1997) supports De La Rivas contention. Pastor-Camarena held that [t] he context and structure of the statute make it clear that the when the alien is released language . . . must apply to aliens who are being released from incarceration on the underlying offense. Id. I find that the reasoning of Pastor-Camarena is persuasive. I, therefore, conclude that § 1226(c) is inapplicable to De La Rivas situation because he was not released from incarceration on an underlying offense and has yet to be tried on the underlying the offense.
(2) Conflict between 8 U.S.C. § 1226(c) and the Bail Reform Act, 18 U.S.C. § 3142
7. 18 U.S.C. § 3142(d) of the Bail Reform Act allows the government to seek temporary detention to permit revocation of conditional release, deportation, or exclusion. This section applies only if the judge determines that the person is an alien and may flee or pose a danger to the community. Id. Once that determination is made, the judge shall detain the alien for not more than 10 working days and direct the attorney for the Government to notify the appropriate person including the appropriate INS official of the judges determination. Id. If the INS official fails or declines to take the alien into custody during that 10 day period, the alien is treated like any other defendant under the Bail Reform Act. Id.
8. According to De La Riva, § 3142(d) would be superfluous if the Court accepted the argument that § 1226(c) applied to persons released on conditions of release. I agree. Clearly, § 3142(d) applies to aliens in pretrial detention situations whereas § 1226(c) applies to the detention of aliens in post-incarceration situations. This reading of the statutes resolves any conflict between the two sections. Such a harmonious interpretation is always favored. I, therefore, conclude that § 1226(c) cannot be read to apply to aliens released on conditions.
The Court notes that the USA did not attempt to invoke § 3142(d) to detain De La Riva although he was detained for approximately a month before being released on conditions. Moreover, the USA never appealed the decision to release De La Riva on conditions.
(3) Due Process Claim
9. Lastly, De La Riva asserts that if § 1226(c) is applied to aliens released on conditions, then § 1226(c) violates his rights to both substantive and procedural due process. When an individual asserts an unconstitutional deprivation of a fundamental liberty interest such as freedom from physical restraint due process prohibits the government from infringing on that fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Martinez, 28 F. Supp.2d at 1281 (quoting Schall v. Martin, 467 U.S. 253, 302 (1983)). In the context of immigration statutes and regulations, whether the infringement is narrowly tailored to serve a compelling governmental interest is determined by evaluating whether the infringement on liberty: 1) is impermissible punishment or permissible regulation; and 2) is excessive in relation to the regulatory goal Congress sought to achieve. Id. at 1282. There is no doubt that mandatory detention by the INS to prevent criminal aliens in deportation proceedings from absconding or committing further criminal acts is a permissible goal. Id. However, in this case, the Court has already found that De La Riva is not a flight risk or a danger to the community.
Consequently, there is no a need to detain De La Riva at this point in time to achieve the aforementioned permissible goal. Rather, INS could achieve its permissible goal of preventing absconding and the commission of further criminal acts by detaining De La Riva after he has completed his sentence, assuming he is guilty.
At this point in the criminal proceedings, the Court notes that De La Riva is presumed innocent.
After all, the INS cannot deport De La Riva until he has served his sentence.
In United States v. Vasquez-Escobar, 30 F. Supp.2d 1364, 1370 (M.D.Fla. 1998), the court held that the governments detention of an alien for an unreasonable period of time while it arranged for deportation constitutes punishment.
Detaining De La Riva for being released on conditions simply amounts to punishment which is excessive in relation to INS permissible goal of detaining aliens who will abscond or commit crimes. Accordingly, I find that the INS use of § 1226(c) to detain aliens released on conditions is a substantive violation of due process. Having made that determination, there is no need to discuss the procedural due process claim.
(4) Separation of Powers
10. In addition to De La Rivas arguments in support of his Motion to Compel Release, the Court believes that applying § 1226(c) to aliens released on conditions raises a separation of powers issue. The United States Constitution protects individual liberty from the abuse of government power, in part, through the principle of "separation of powers." Mistretta v. United States, 488 U.S. 361, 380 (1989). As the Supreme Court stated in INS v. Chadha, 462 U.S. 919, 951(1983): The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.
The separation of powers doctrine is violated when one branch of government assumes a function that more properly is entrusted to another. See id. at 963 (Powell, J., concurring). The role of the judiciary in this tripartite structure of government is five-fold. First, federal courts fulfill their role only by adjudicating cases or controversies before them. Second, when faced with a proper case or controversy, courts, both state and federal, must apply all applicable laws in rendering their decisions. Third, courts have a duty to uphold the Constitution. Fourth, a law contrary to the Constitution may not be enforced. Last, a final judgment by a court is binding and must be enforced. So once a case or controversy reaches the courts, the courts, in essence, become the final arbiters as to the constitutionality of government actions. Painter v. Shalala, 97 F.3d 1351, 1359 (10th Cir. 1996) (quoting Bartlett v. Bowen, 816 F.2d 695, 706-07 (D.C. Cir. 1987)).
11. In this situation, the INS and Attorney General both are arms of the executive branch.
The Department of Justice.
I consider their interference with the federal judiciarys ability to perform its duty to lawfully apply the Bail Reform Act as unconstitutional overreaching into the courts domain. As stated, supra, § 3142(d) specifies that if the Court find that an alien is a flight risk or danger to the community the government will notify an INS official within 10 days. If no action is taken by the INS, then the Court applies the Bail Reform Act to the alien as it would to any other defendant. I interpret § 3142(d) as providing this Court with pretrial jurisdiction over the alien in two instances:
(1) if the Court finds that the alien is not a flight risk or danger to the community; and
(2) the INS fails to respond to the Courts finding that the alien is a flight risk or danger to the community.
Conversely, I believe that under § 3142(d), the INS gains pretrial jurisdiction over the alien only if the Court finds that an alien is a flight risk or danger to the community and the INS official takes action in the 10 day period. In this case, I did not make the preliminary finding that De La Riva is a flight risk or danger to the community. Consequently, the INS under § 3142(d) did not have an opportunity to exercise its potential pretrial jurisdiction over De La Riva. Nonetheless, the INS went ahead and detained De La Riva in contravention of this Courts pretrial jurisdiction over De La Rivas case. I find that such an action is a blatant violation of the separation of powers doctrine.
12. Moreover, as discussed, supra, INS detention of De La Riva is unconstitutional and cannot be enforced. The Court cannot allow the INS to engage in unconstitutional behavior unless the Court wishes to abandon its prescribed role as the final arbiter of the constitutionality of government actions. Because the Court will not give up that role as final arbiter, the Court will maintain the boundaries of the separation of powers. In sum, the INS and the Attorney General exceeded the limits of their power and assumed a function which properly belongs with the courts, namely controlling the detention of an accused alien prior to his or her criminal trial as provided in § 3142(d).
Recommended Disposition
I recommend granting De La Rivas Amended Motion to Compel Release and Petition for Writ of Habeas Corpus and denying the USAs Motion to Strike. I further recommend ordering INS not to detain De La Riva upon his release on conditions. Timely objections to the foregoing may be made pursuant to 28 U.S.C. § 636(b)(1)(C). Within ten days after a party is served with a copy of these proposed findings and recommendations that party may, pursuant to § 636(b)(1)(C), file written objections to such proposed findings and recommendations. A party must file any objections within the ten day period allowed if that party wants to have appellate review of the proposed findings and recommendations. If no objections are filed, no appellate review will be allowed.